How you're married affects property split on divorce

One of the most pressing problems facing divorcing couples is the division of immovable assets such as property. “For many South Africans, a property is the biggest investment they’ll make, and, as such, it makes sense that it is the largest asset that needs to be divided when couples separate,” says Bruce Swain, the chief executive of Leapfrog Property Group.

How assets, including property, are divided in a divorce depends on the couple’s matrimonial property regime, or type of marital contract.

There are three types of marital contract in South Africa: in community of property (which is the default if couples do not enter into an antenuptial contract), and two types of antenuptial contract: out of community of property with accrual and out of community of property without accrual.

In community of property

The spouses share equally all the assets and liabilities of their joint estate at the dissolution of the marriage.

“It doesn’t matter whether the property was bought before the marriage or in whose name it is registered,” Swain says. “Barring one party buying the other out, if that party can afford it, the property will be sold and the net proceeds from the sale will be distributed equally.”

According to the Recognition of Customary Marriages Act, couples in a traditional marriage are automatically regarded as being married in community of property. They can apply to the High Court to have this changed.

Out of community of property with accrual

The parties are entitled to share in the growth of each of their estates during the marriage. On divorce, the accrued amount to be divided is determined by deducting the value of each partner’s assets reflected in the antenuptial agreement from the value of his or her estate.

“If the home was bought during the marriage, it may be sold, with the net proceeds split between the couple, or either party can buy the other out,” Swain says. If the couple chooses the latter option, the transfer of the half-share of the property will be exempt from transfer duty, he says.

If the property was bought before the marriage and was not excluded in the antenuptial contract, it will go to the spouse in whose name it is registered.

Out of community of property without accrual

The spouses’ estates remain entirely separate. “Essentially, this means that both partners retain the assets they had before the marriage, as well as any assets accrued during the marriage,” Swain says.

What if you reach a different agreement?

A divorce agreement can override the terms of a couple’s marital regime.

“If both spouses agree on how they want to divide their assets – and, in particular, their property – it needn’t be on the basis of their marriage regime,” Swain says. “However, if an agreement can’t be reached, the property must be divided according to the couple’s regime,” he says.

In the event of a dispute, particularly if misconduct can be proved against a spouse (in the case of abuse, for example), the court has the discretion to divide the property as it deems fit.